PUNJABI & CO LTD v SOC.

M RAJWANI & CO
2009 SCJ 76

SCR 82540
IN THE SUPREME COURT OF MAURITIUS

(COMMERCIAL DIVISION)

In the matter of:-

G.M. Punjabi & Co. Ltd. Plaintiff

v.

Soc. M. Rajwani & Co. Defendant

JUDGMENT

The Plaintiff Company avers that the defendant is indebted to it in the sum of

Rs530,251 for goods sold and delivered. The defendant asked for full and detailed

particulars of the goods sold and delivered including dates of sale, dates of delivery, for

what amount and amount paid so far. The plaintiff replied that invoices were at the

disposal of the defendant or its attorney at the office of plaintiff’s attorney.

Thereafter, a short plea was given. The defendant denies owing the amount

claimed for goods sold and delivered and it further states that there were amicable

request to pay.

The plaintiff’s representative has produced the invoices for goods delivered to the

defendant (Annex 1 to 26 of Doc P1). He further adds that five cheques were issued by

the defendant which were not honoured by the bank with mention ‘not arranged for’. He

also states that the transaction was made under trust as the owner of defendant is
related to him. He agrees that it is for that reason that some of the invoices were not

signed. Under cross-examination, he maintained that the goods were delivered and VAT

paid to the Mauritius Revenue Authority.

When the defendant under oath tried to give evidence that the defendant did not

receive the goods, objection was taken in view of the plea which was a general denial.

The objection was upheld.

When the defence is a general denial, it is tantamount to no defence albeit not an

admission. It only means that the defendant is telling the plaintiff that it is putting it to the

proof that goods were sold and delivered. It is not open to the defendant to adduce

evidence to establish facts which it did not aver.

Rule 13 of the Rules of the Supreme Court 2000 provides that:-

“Every pleadings shall clearly and distinctly state all matters of fact that are

necessary to sustain the plaint, plea or counterclaim as the case may be.”

It must not be forgotten that the new rule does not differ from what was in the Old

Supreme Court Rules of 1903. From the various decisions to which I shall refer, it is also

clear that for guidance on interpretation of our Rules, we refer to the English Supreme

Court Rules.

In Lemière v Malécaut and Ors [1993 MR 318] the question of a general denial

was considered as follows:

“Counsel for the plaintiff took up the point that the defendants having made

general denials their pleas must be deemed to amount to admissions. He relied

on 0.18/13/1 to 6 from the latest edition of the White Book. Although a general

denial, or a general statement of non admission, of allegations of facts is not a

sufficient traverse, it is not necessary for the pleader to copy out each allegation

of fact which he denies or refuses to admit. Since 1893 it has become a

common practice for the defendant to plead in the defence that he denies “each

of the allegations contained in paragraph … of the Statement of Claim”, or “each

of the allegations in paragraph … other than ‘some allegation’ which is

specifically admitted.” See Adkins v H. Met. Transway Co. (1893) 10 TLR

1731. It is true that one should deny the allegation or allegations contained in

pleadings and not deny the pleadings as such. I would put this too frequent

lapsus rather on the account of a problem of semantics in the local context than

on anything else. In fact the only paragraph of the plea of defendant Malécaut

which offends is paragraph 5 which reads: “Defendant No.1 denies paragraphs

8A, 8B, 9, 9A of the amended Statement of Claim in their form and tenor and

puts plaintiff to the proof thereof” and which amounts to a general denial. That

paragraph of the plea does not affect the case on the merits since the issue of

illegal occupation canvassed in paragraphs 8A and 8B was also taken in

paragraph 2 of the Statement of Claim and was specifically denied at paragraph

2 of the Statement of Defence. Paragraphs 9 and 9A which bring in the issue of

damages does not concern Malécaut in view of my findings. At any rate

paragraph 4 of 0.18, r.13 which reads “Any allegation that a party has suffered

damage and any allegation as to the amount of damages is deemed to be

 traversed unless specifically admitted” can always be invoked in aid of the

defendants.”

In Cassim v United Bus Service Co. Ltd. [1988 MR 61], the defence was a

general denial and at no time did the defendant aver that there was “force majeure”, the

accident occurred when the driver of the bus suffered a stroke. The Court considered the

general denial as follows:-

“Is it necessary to state once more the basic principles of pleadings prevailing in

our Courts? I refer to the Supreme Court Practice 1982 Vol. 1 Order 18 rule 8 at

page 306 –

This Rule enforces one of the cardinal principles of the present system of

pleading, viz. that every defence or reply must plead specifically any matter

which makes the claim or defence in the preceding pleading not maintainable or

which might take the opposite party by surprise or raises issues of fact not

arising out of the preceding pleading. Put shortly, wherever a party has a special

ground of defence or raises an affirmative case to destroy a claim or defence, as

the case may be, he must specifically plead the matter he relies on for such

purpose.

It often is not enough for a party to deny an allegation in his opponent's pleading;

he must go further and dispute its validity in law, or set up some affirmative case

of his own in answer to it. It will not serve his turn merely to traverse the

allegation; he must confess and avoid it.

It would be convenient I think to go one step further and to quote Buckley LJ in

Gant v Hobbs [1912] 1 Ch 717, 728, commenting on Order 19 (Order 18 now)-

“Where the defendant ought to plead things of that sort the rule does not say that

if he does not the Court shall adjudicate upon the matter as if a ground valid in

law did not exist which does exist.”

The effect of the rule is, I think, for reasons of practice and justice and

convenience to require the party to tell his opponent what he is coming to the

Court to prove. If he does not do that the Court will deal with it in one of two

ways. It may say that it is not open to him, that he has not raised it and will not be

allowed to rely on it; or it may give him leave to amend by raising it, and protect

the other party if necessary by letting the case stand over. The rule is not one

that excludes from the consideration of the Court the relevant subject-matter for

decision simply on the ground that it is not pleaded. It leaves the party in mercy

and the Court will deal with him as is just.

I find therefore that the defence is not entitled thus to establish a fact not raised

in the plea, unless it is amended.” [underlining is mine]

In Hawaldar v Saib [1980 MR 301] it was stated that:-

“Incidentally, the manner in which this case was allowed to drag on is a good

illustration of the need for proper pleadings. The time of the Court and of the

parties would not have been so wasted if the appellant instead of pleading a
 general denial had set out distinctly in his pleadings what issues he intended to

raise.

That experience can only reinforce the view often expressed by this Court that if

the defendant wishes to raise issues of fact not arising out of the preceding

pleading, he should specifically set out those issues. Because that was not done,

the magistrate too often found himself in the position of a referee umpiring a

boxing match in an unlighted tunnel during a dense fog on the night of an

eclipse.”

In Thorp v. Holdsworth, (1876) 3 Ch. D. 637 at p. 639, Jessel, MR, stated

that:-

“The whole object of pleadings is to bring the parties to an issue, and the

meaning of the rules of Order XIX was to prevent the issue being enlarged

which would prevent either party from knowing when the cause came on for

trial, what the real point to be discussed and decided was. In fact, the whole

meaning of the system is to narrow the parties to definite issues, and thereby

to diminish expense and delay, especially as regards the amount of testimony

required on either side at the hearing.”

In Danjoux v Partnership Bangaroo-Danjoux and Cie [2001 MR 64], it is

said that “any party to a case must plead specifically any matter, which if it is not

pleaded, may take the opposite party by surprise. In the present case defendants have

simply denied plaintiff’s allegations. But a mere traverse is not sufficient. Defendants

must state clearly the facts they rely upon to contradict plaintiff’s version. They need not
adduce evidence in their pleadings. They must inform the Court and their opponent of

the specific proposition on which they rely while avoiding prolixity.”

Consequently, having regard to the pleadings, it is my reading that the defendant

is putting the plaintiff to proof that goods were delivered and sold to defendant. Although

it is open to it to cross-examine the plaintiff on the delivery but I am of the view that it is

not open to the defendant to prove facts which had not been averred, namely that he

never received the goods. It would have been a different picture had the defendant after

denying specifically the different paragraphs of the plaint with summons averred facts

like it never ordered any goods; had never received them or that it did not owe as the

amount claimed had been paid, giving particulars of the payment. In so doing the plaintiff

would be aware what case it has to meet and prepare its case accordingly. In the light of

the decided cases referred to above, having elected to put the plaintiff to the proof

whether goods were sold and delivered to it, it is not open for the defendant, in the state

of the pleadings, to come in the witness box to say that no goods were delivered. The

defendant ought to have moved to amend the defence as the issue had already been

joined putting plaintiff to the proof that goods were sold and delivered. Whether the

motion would be granted is another matter.

In the light of the invoices, some of which had been signed by the purchaser, the

family relationship which was not challenged and the five cheques issued by the

defendant produced by the plaintiff which were not honoured by the Bank as they had

not been “arranged for”, I find it proved on a balance of probability that goods in the

amount of Rs530,251, although the amount in respect of the invoices produced was
more than the amount claimed, had been sold and delivered to the defendant for which

there had been no payment despite several amicable requests.

I order the defendant to pay to the plaintiff the sum of Rs530,251 with interest at

the prevailing bank rate as from the date of entry of the plaint with summons until final

payment and costs.

P. LAM SHANG LEEN

JUDGE

17 MARCH 2009

Judgment delivered by Hon P Lam Shang Leen, Judge

For Plaintiff : Mr Attorney F Hajee Abdoola – Mr N Ramburn, of Counsel

For Defendant : Mr Attorney V K Dwarka – Mr L Servansingh, of Counsel